DD (Afghanistan) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) UKSC 2011/0003 is the sequel to the Al-Sirri case. The same panel of justices will hear the DD case in the UK Supreme Court for two days, on 16 and 17 May 2012. The hearing will be viewable online here from 10:30 am.
The Supreme Court will be considering whether – in the absence of evidence of criminal conduct – DD’s membership of an insurgent group, flagrant human rights abuses or terrorism, participation in military activity against the Afghan army and UN mandated NATO forces (or ISAF) amounted to conduct contrary to the purposes and principles of the United Nations within the meaning of Article 1F(c) of the Refugee Convention (Article 12(2)(c) of the Qualification Directive).
DD, a 36-year old Afghan, came to the UK on 18 January 2007 and claimed asylum upon arrival. He had a history of involvement with Jamiat-e-Islami, the Taliban and Gulbuddin Hekmatyar’s Hizb-e-Islami organisation. DD’s activities in Afghanistan meant that he reported to Kashmir Khan, who was commanded by Hekmatyar. In Kunar province, DD was part of a squad 15 people who were trained by an Afghan and two Arabs: they fought both ISAF and Afghan forces. DD’s older brother YD, who later joined the Taliban, was a reputed Jamiat-e-Islami commander. DD served as YD’s deputy.
After the Taliban’s fall in 2001, YD tried to regroup the Taliban and was in charge of resisting the Afghan army’s advances in Parwan, Kapisa, Wardak and Kabul. Both brothers fled to Pakistan where, in an assassination attempt on the pair, YD was killed. Although DD was injured, he survived and returned to Afghanistan to fight for Hizb-e-Islami: a proscribed organisation under the Terrorism Act 2000. When he was ordered to fight in his home area (where high-ranking government officials were his enemies), DD opted to flee to Pakistan and later arrived in the UK. Through correspondence dated 27 April and 6 August 2007, the SSHD refused DD’s asylum claim and sought – under Article 1F(c) – to exclude him from the protection afforded by the Refugee Convention.
Asylum and Immigration Tribunal
The AIT found that section 54 of the Immigration Asylum and Nationality Act 2006 – which widens the construction of Article 1F(c) to include acts (constituting an actual or inchoate offence) of committing, preparing or instigating terrorism or encouraging or inducing others to do the same – was a substantive change in the law which did not operate retrospectively.
Hence DD’s overall conduct, which lacked “specificity of evidence” with Hizb-e-Islami, was “at its end stage” when section 54 of the 2006 Act came into force. For the AIT there were substantial grounds for believing that, if returned, DD would face a real risk of being exposed to serious harm amounting to persecution in breach of the Refugee Convention and contrary to Article 3 of ECHR.
Moreover, DD’s circumstances needed to be assessed against the background that his return to Afghanistan following his brother YD’s assassination, in which DD was also targeted but survived, was prompted by his desire to seek protection. Equally, since YD was prominent in Jamiat-e-Islami, it was probable that DD would rise to similar heights in the Hizb-e-Islami Hekmatyar within which he acted both offensively and defensively against ISAF and Afghan national forces. Yet the AIT found that Article 1F (c) did not apply to DD.
The Court of Appeal
In hearing the SSHD’s appeal, the Court (Lady Justice Black and Lord Justices Pill and Rimer, read judgment here) framed the issues as whether
(1) On the AIT’s findings, the extent to which DD’s acts were acts of terrorism was within the meaning of section 1 of the Terrorism Act 2000 Act and/or contrary to the purposes and principles of the UN
(2) Those acts fell within the exemption in Article 1F(c)
(3) The lack of specificity of evidence negated the operation of Article 1F(c)
(4) DD significantly contributed to further terrorist purposes and he was aware that his activities offended the UN’s purposes and principles; and
(5) Section 54 of the 2006 Act only applied to acts committed after the provision came into force.
DD relied on KJ (Sri Lanka)  EWCA Civ 292 – about Sri Lanka’s civil war and the Tamil Tigers – to make the point that participation in military action against the government did not constitute the requisite serious reasons for considering that KJ had been guilty of acts contrary to the purposes and principles of the UN. Pill LJ at  observed that, unlike Afghanistan, there were no UN mandated operations in Sri Lanka.
Equally, it was argued that UNHCR Guidelines on International Protection which explained that generally for a crime to fall within Article 1F, individual responsibility – which included instigating, aiding, abetting and participating in a joint criminal enterprise – must be established. Moreover, in cases involving a terrorist act the correct application of Article 1F(c) involved assessing “the extent to which the act impinges on the international plane – in terms of its gravity, international impact, and implications for international peace and security.” The guidelines are not binding.
Following KK (Turkey)  UKIAT 00101 the SSHD argued that the guidelines “ignore” the Vienna Convention on the Law of Treaties 1969 pursuant to which resolutions of the General Assembly and the Security Council are relevant to the purposes and principles of the UN; the resolutions bind Member States to consider acts against UN mandated forces and terrorism as against the UN’s purposes and principles.
In SS v SSHD  UKSIAC 56/2009, Mitting J was “driven” to conclude “that the observations in KJ were made per incuriam and do not bind us” (at ). He also rejected the argument that “terrorism must have an international character or aspect in order to come within Article 1F (c) … it is the duty of states to deny safe haven to those who have committed a terrorist act” (at ). SIAC excluded SS from refugee status as he was guilty of acts contrary to the UN’s purposes and principles. Pill LJ (at ) noted in that DD’s case Directive 2004/83/EC was not relied upon – “it presumably being accepted that UK legislation is to the same effect”, this follows SIAC’s take on the subject in SS at  &  – but in Al-Sirri we heard Mr Edward Fitzgerald QC’s argument that the “directive prevails” over the 2006 Act. It is worth noting that judgment was handed down in DD’s case in December 2010 and since then SS has also visited the Court of Appeal as SS (Libya)  EWCA Civ 1547; see grounds of appeal at .
JS (Sri Lanka)  UKSC 15 concerned the Tamil Tigers and Article 1F(a) – relating to war crimes or crimes against humanity, rather than the UN’s purposes and principles. Lord Brown noted that the parties agreed that there could be only one “true interpretation” which was “an autonomous reason … found in international rather than domestic law” and that exclusion should be interpreted “restrictively and cautiously” (at ); it was agreed that any international instruments should be considered at the material time disqualification is contemplated and that more than mere membership of an organisation was necessary.
Thus, his Lordship elaborated the criteria – including the nature, size and status (whether proscribed?) of the organisation and the role, rank, influence and recruitment of persons into it – for exclusion and pointed out that a person could be disqualified from Article 1F if he was aware of what he was doing, did so voluntarily and contributed in a significant way in committing war crimes (at ). Lord Brown was not considering the definition of “terrorist” and said that although the LTTE was predominantly terrorist in nature, military action against the government was not a war crime (at ).
In R v F  EWCA Crim 243 while interpreting the definition of terrorism in the 2000 Act – and dismissing a Libyan Islamist’s (who plotted to murder the then president of Libya Muammar Gaddafi) appeal – the Court of Appeal (Criminal Division, at ) said “terrorism is terrorism, whatever the motives of the perpetrators.” President Sir Igor Judge added, “by its very nature terrorism is indiscriminate” (at ).
The Court of Appeal’s Decision
Pill LJ, with whom Rimer and Black LJJ agreed, allowed the SSHD’s appeal. Applying KJ, the Court held that military action directed against government forces, even by a proscribed terrorist organisation, did not as such constitute terrorism within the 2000 Act or acts contrary to the UN’s purposes and principles (at ). Moreover, applying KK, direct military action against ISAF forces carrying out the UN mandate was action contrary to the UN’s purposes and principles and therefore attracted the exemption from protection in Article 1F(c) (at  & ).
Furthermore, acts could include acts of individuals and acts “instigating terrorism” but it did not follow that violence against everyone in UN colours was against its purposes and principles because situations differed and required “specific analysis.” (at ). It was not a prerequisite for a finding, in relation to the Article 1F(c) exemption, that a specific identifiable crime or act of terrorism – such a particular killing on a particular date – had to be proved (at . Nevertheless, the AIT had found a genus of activity by DD, over a prolonged period, which was capable of disentitling him from the Convention’s protection.
If it had been necessary to decide the point, when considering whether acts of terrorism as defined in the 2000 Act had been committed, the AIT should have taken into account acts done before the 2006 Act came into force (at  & , also described in the judgment as “the temporal issue”).
Therefore, Pill LJ concluded that:
67. There were material errors of law in the tribunal’s findings in the failure to approach the respondent’s [or DD] conduct and participation in events in the manner specified in JS and in failing to go on to consider whether the respondent’s conduct involved acts contrary to the purposes and principles of the United Nations. I would remit the case to the Tribunal. I would not leave it open to the Tribunal so to conduct the reconsideration as to make possible findings of terrorism as such. That would be unjust to the respondent. The Tribunal should conduct such enquiries as are necessary to decide whether the conduct of the respondent includes action contrary to the purposes and principles of the United Nations, as so defined.
Both Al-Sirri and DD are hugely interesting cases and the definition of “terrorism” lies at the heart of the decision whether the benefits of the Refugee Convention should not apply to a person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the UN.
Having watched the Al-Sirri hearing it appears to be inevitable that the Supreme Court will find some weight in the SSHD’s argument that in this day and age terrorism, more often then not, has an international dimension. The debate on the standard of proof – above mere suspicion but below the criminal standard – is also crucial because in Mr Al-Sirri’s case, and Lord Phillips seemed to dwell on this today, applying Article 1F (c) might be unfair as the scales of justice are so evenly balanced.